Humanitarian intervention

Humanitarian intervention has been defined as a state's use of "military force against another state when the chief publicly declared aim of that military action is ending human-rights violations being perpetrated by the state against which it is directed."[1] This definition may be too narrow as it precludes non-military forms of intervention such as humanitarian aid and international sanctions. On this broader understanding, "Humanitarian intervention should be understood to encompass… non-forcible methods, namely intervention undertaken without military force to alleviate mass human suffering within sovereign borders."[2]

There is no one standard or legal definition of humanitarian intervention; the field of analysis (such as law, ethics or politics) often influences the definition that is chosen. Differences in definition include variations in whether humanitarian intervention is limited to instances where there is an absence of consent from the host state; whether humanitarian intervention is limited to punishment actions; and whether humanitarian intervention is limited to cases where there has been explicit UN Security Council authorization for action.[3] There is, however, a general consensus on some of its essential characteristics:[4]

Humanitarian intervention involves the threat and use of military forces as a central feature

It is an intervention in the sense that it entails interfering in the internal affairs of a state by sending military forces into the territory or airspace of a sovereign state that has not committed an act of aggression against another state.

The intervention is in response to situations that do not necessarily pose direct threats to states’ strategic interests, but instead is motivated by humanitarian objectives.

The subject of humanitarian intervention has remained a compelling foreign policy issue, especially since NATO’s intervention in Kosovo in 1999, as it highlights the tension between the principle of state sovereignty – a defining pillar of the UN system and international law – and evolving international norms related to human rights and the use of force.[5] Moreover, it has sparked normative and empirical debates over its legality, the ethics of using military force to respond to human rights violations, when it should occur, who should intervene,[6] and whether it is effective.

To its proponents, it marks imperative action in the face of human rights abuses, over the rights of state sovereignty, while to its detractors it is often viewed as a pretext for military intervention often devoid of legal sanction, selectively deployed and achieving only ambiguous ends. Its frequent use following the end of the Cold War suggested to many that a new norm of military humanitarian intervention was emerging in international politics, although some now argue that the 9/11 terrorist attacks and the US "war on terror" have brought the era of humanitarian intervention to an end.[7] James Pattison, however, has recently argued that the NATO intervention in Libya has bucked this trend.[8]

Possibly the first historical example of a state expressly intervening in the internal affairs of another on the grounds of humanitarian concern was during the Greek War of Independence in the early 19th century, when Britain, France and Russia decisively intervened in a naval engagement at Navarino in 1827 to secure for the Greeks independence from the Ottoman Empire.

Popular opinion in England was sympathetic to the Greeks (philhellenism), in part due to the Greek origin of the West's classical heritage. The renowned poet Lord Byron even took up arms to join the Greek revolutionaries, while the London Philhellenic Committee was established to aid the Greek insurgents financially.[11]

In 1823, after initial ambivalence, the Foreign SecretaryGeorge Canning declared that "when a whole nation revolts against its conqueror, the nation cannot be considered as piratical but as a nation in a state of war". In February of the same year, he notified the Ottoman Empire that the United Kingdom would maintain friendly relations with the Turks only under the condition that the latter respected the Christian subjects of the Empire. He was also instrumental in the outcome of the St. Petersburg Protocol 1826, in which Russia and Britain agreed to mediate between the Ottomans and the Greeks on the basis of complete autonomy of Greece under Turkish sovereignty.[12] When this did not end the War, Canning negotiated a following treaty that ultimately led to the destruction of the Egyptian-Turkish fleet at the Battle of Navarino.

The treatment of minorities under the Ottoman aegis proved a rich source of liberal agitation throughout the nineteenth century. A multinational force under French leadership was sent to Lebanon to help restore peace after the 1860 Druze–Maronite conflict, in which thousands of Christian Maronites had been massacred by the Druze population. Following an international outcry, the Ottoman Empire agreed on 3 August 1860 to the dispatch of up to 12,000 European soldiers to reestablish order.[13] This agreement was further formalized in a convention on 5 September 1860 with Austria, Great Britain, France, Prussia and Russia.[13]

In May 1876 Ottoman troops began massacring unarmed agitators for autonomy in Bulgaria, leading to the Eastern Crisis. The British launched a government investigation into the events, which confirmed that as part of an official policy, the Turks had killed at least 12,000 Bulgarians and obliterated about 60 villages. Lurid reports began to appear in newspapers, especially accounts by the investigative journalist William Thomas Stead in the Northern Echo, and protest meetings were called across the country.[14]

Despite the unprecedented demonstration of the strength of public opinion and the media, the Prime Minister Benjamin Disraeli remained an unmoved practitioner of realpolitik, and considered British interests to lie in the preservation of Ottoman sovereignty in Eastern Europe. Lord Derby the Foreign Secretary disagreed and telegraphed the Sublime Porte that "any renewal of the outrages would be more fatal to the Porte than the loss of a battle." Apart from issuing stern advice and proposals for internal Turkish reform and the legal protection of minorities, the Disraeli government did nothing. However, the issue convulsed British politics with former Prime Minister William Ewart Gladstone coming out of retirement to campaign over the atrocities. In a famous campaigning speech he said:[15]

Let the Turks now carry away their abuses, in the only possible manner, namely, by carrying off themselves. Their Zaptiehs and their Mudirs, their Blmhashis and Yuzbashis, their Kaimakams and their Pashas, one and all, bag and baggage, shall, I hope, clear out from the province that they have desolated and profaned. This thorough riddance, this most blessed deliverance, is the only reparation we can make to those heaps and heaps of dead, the violated purity alike of matron and of maiden and of child; to the civilization which has been affronted and shamed; to the laws of God, or, if you like, of Allah; to the moral sense of mankind at large.

Rising Great Power tensions in the early 20th century and the interwar period led to a breakdown in the concerted will of the international community to enforce considerations of a humanitarian nature. Attempts were made under the auspices of the League of Nations to arbitrate and settle international disputes. Aggressive actions, such as the Italian Invasion of Abyssinia and the Japanese occupation of Manchuria were condemned, but the League lacked the resolve to enforce its will effectively. The Allied discovery of the Holocaust and the subsequent Nuremberg trials at the end of World War II caused attitudes to change considerably. Especially since the end of the Cold War, interventions have increasingly been used, such as the NATO bombing of Yugoslavia and the 2011 military intervention in Libya.

"There seems to be no little need that the whole doctrine of non-interference with foreign nations should be reconsidered, if it can be said to have as yet been considered as a really moral question at all... To go to war for an idea, if the war is aggressive, not defensive, is as criminal as to go to war for territory or revenue; for it is as little justifiable to force our ideas on other people, as to compel them to submit to our will in any other respect. But there assuredly are cases in which it is allowable to go to war, without having been ourselves attacked, or threatened with attack; and it is very important that nations should make up their minds in time, as to what these cases are... To suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error...."

According to Mill's opinion (in 1859) barbarous peoples were found in Algeria and India where the French and British armies had been involved. Mill's justification of intervention was overt imperialism. First, he argued that with "barbarians" there is no hope for "reciprocity", an international fundamental. Second, barbarians are apt to benefit from civilized interveners, said Mill, citing Roman conquests of Gaul, Spain, Numidia and Dacia. Barbarians,

"have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one. The only moral laws for the relation between a civilized and a barbarous government, are the universal rules of morality between man and man."

While seeming wildly out of kilter with modern discourse, a similar approach can be found in theory on intervention in failed states. Of more widespread relevance, Mill discussed the position between "civilized peoples".

"The disputed question is that of interfering in the regulation of another country’s internal concerns; the question whether a nation is justified in taking part, on either side, in the civil wars or party contests of another: and chiefly, whether it may justifiably aid the people of another country in struggling for liberty; or may impose on a country any particular government or institutions, either as being best for the country itself, or as necessary for the security of its neighbours.

Mill brushes over the situation of intervening on the side of governments who are trying to oppress an uprising of their own, saying "government which needs foreign support to enforce obedience from its own citizens, is one which ought not to exist". In the case however of a civil war, where both parties seem at fault, Mill argues that third parties are entitled to demand that the conflicts shall cease. He then moves to the more contentious situation of wars for liberation.

"When the contest is only with native rulers, and with such native strength as those rulers can enlist in their defence, the answer I should give to the question of the legitimacy of intervention is, as a general rule, No. The reason is, that there can seldom be anything approaching to assurance that intervention, even if successful, would be for the good of the people themselves. The only test possessing any real value, of a people’s having become fit for popular institutions, is that they, or a sufficient portion of them to prevail in the contest, are willing to brave labour and danger for their liberation. I know all that may be said, I know it may be urged that the virtues of freemen cannot be learnt in the school of slavery, and that if a people are not fit for freedom, to have any chance of becoming so they must first be free. And this would be conclusive, if the intervention recommended would really give them freedom. But the evil is, that if they have not sufficient love of liberty to be able to wrest it from merely domestic oppressors, the liberty which is bestowed on them by other hands than their own, will have nothing real, nothing permanent. No people ever was and remained free, but because it was determined to be so...."

Humanitarian intervention is a concept that can allow the use of force in a situation when the UN Security Council cannot pass a resolution under Chapter VII of the Charter of the United Nations due to veto by a permanent member. Chapter VII allows the Security Council to take action in situations where there is a “threat to the peace, breach of the peace or act of aggression”. However, any resolution to that effect must be supported by all five permanent members. The reference to the "right" of humanitarian intervention was, in the post Cold-War context for the first time invoked in 1990 by the UK delegation after Russia and China had failed to support a no-fly zone over Iraq. Therefore, in addition to humanitarian objectives the concept is designed to circumvent the UN Security Council by invoking a right. However, critics base their arguments on the 1648 treaty of Westphalia, which states the rights of sovereign nations to act freely within their own borders. This is upheld in the UN Charter of 1945, where in article 2(7) it is stated that “nothing should authorize intervention in matters essentially within the domestic jurisdiction of any state.” Thus, because both proponents and opponents of humanitarian intervention have their legal grounds on the charter of the United Nations, there is still an ongoing controversy as to whether sovereignty or humanitarian causes should prevail. The United Nations has also continuously been involved with issues related to humanitarian intervention, with the UN intervening in an increased number of conflicts within the borders of nations.[17]

Although most writers agree that humanitarian interventions should be undertaken multilaterally, ambiguity remains over which particular agents - the UN, regional organizations, or a group of states - should act in response to mass violations of human rights. The choice of actor has implications for overcoming collective action challenges through mobilization of political will and material resources.[18] Questions of effectiveness, conduct and motives of the intervener, extent of internal and external support, and legal authorization have also been raised as possible criteria for evaluating the legitimacy of a potential intervener.[19]

The understanding of what constitutes threats to international peace has been radically broadened since the 1990s to include such issues as mass displacement, and the UN Security Council has authorized use of force in situations that many states would have previously viewed as “internal” conflicts.[20]

Four distinct attitudes or approaches to the legitimacy of humanitarian intervention in the absence of Security Council authorizations can be identified:[21]

Status quo: Categorically affirms that military intervention in response to atrocities is lawful only if authorized by the UN Security Council or if it qualifies as an exercise in the right of self-defense.[22] Under this view, NATO’s intervention in Kosovo constituted a clear violation of Article 2(4). Defenders of this position include a number of states, most notably Russia and the People's Republic of China.[23] Proponents of this approach point to the literal text of the UN Charter, and stress that the high threshold for authorization of the use of force aims to minimize its use, and promote consensus as well as stability by ensuring a basic acceptance of military action by key states. However, Kosovo war has also highlighted the drawbacks of this approach,[24] most notably when effective and consistent humanitarian intervention is made unlikely by the geopolitical realities of relations between the Permanent Five members of the Security Council, leading to the use of the veto and inconsistent action in the face of a humanitarian crises.

Excusable breach: Humanitarian intervention without a UN mandate is technically illegal under the rules of the UN Charter, but may be morally and politically justified in certain exceptional cases. Benefits of this approach include that it contemplates no new legal rules governing the use of force, but rather opens an “emergency exit” when there is a tension between the rules governing the use of force and the protection of fundamental human rights.[25][26] Intervening states are unlikely to be condemned as law-breakers, although they take a risk of violating rules for a purportedly higher purpose. However, in practice, this could lead to questioning the legitimacy of the legal rules themselves if they are unable to justify actions the majority of the UN Security Council views as morally and politically unjustified.

Customary law: This approach involves reviewing the evolution of customary law for a legal justification of non-authorized humanitarian intervention in rare cases. This approach asks whether an emerging norm of customary law can be identified under which humanitarian intervention can be understood not only as ethically and politically justified but also as legal under the normative framework governing the use of force. However, relatively few cases exist to provide justification for the emergence of a norm, and under this approach ambiguities and differences of view about the legality of an intervention may deter states from acting. The potential for an erosion of rules governing the use of force may also be a point of concern.

Codification: The fourth approach calls for the codification of a clear legal doctrine or “right” of intervention, arguing that such a doctrine could be established through some formal or codified means such as a UN Charter Amendment or UN General Assembly declaration.[27] Although states have been reluctant to advocate this approach, a number of scholars, as well as the Independent International Commission on Kosovo, have made the case for establishing such a right or doctrine with specified criteria to guide assessments of legality.[28][29] A major argument advanced for codifying this right is that it would enhance the legitimacy of international law, and resolve the tension between human rights and sovereignty principles contained in the UN charter. However, the historical record on humanitarian intervention is sufficiently ambiguous that it argues for humility regarding efforts to specify in advance the circumstances in which states can use force, without Security Council authorizations, against other states to protect human rights.[30]

Although usually considered to be categorically distinct from most definitions of humanitarian intervention,[31] the emergence of a 'Responsibility to protect' (R2P) deserves mention. Responsibility to Protect is the name of a report produced in 2001 by the International Commission on Intervention and State Sovereignty (ICISS) which was established by the Canadian government in response to the history of unsatisfactory humanitarian interventions. The report sought to establish a set of clear guidelines for determining when intervention is appropriate, what the appropriate channels for approving an intervention are and how the intervention itself should be carried out.

Responsibility to protect seeks to establish a clearer code of conduct for humanitarian interventions and also advocates a greater reliance on non-military measures. The report also criticises and attempts to change the discourse and terminology surrounding the issue of humanitarian intervention. It argues that the notion of a 'right to intervene' is problematic and should be replaced with the 'responsibility to protect'. Under Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other states, states are said to have a responsibility to intervene and protect the citizens of another state where that other state has failed in its obligation to protect its own citizens.

This responsibility is said to involve three stages: to prevent, to react and to rebuild. Responsibility to Protect has gained strong support in some circles, such as in Canada, a handful of European and African nations, and among proponents of human security, but has been criticised by others, with some Asian nations being among the chief dissenters.

Some academics have referred to these cases as humanitarian interventions.[34][35] However, in some cases this is only a retrospective classification of actions that were the result of a variety of motivations. Vietnam's invasion of Cambodia for instance, was justified as self-defense rather than humanitarianism and has only later come to be seen as a possible example of humanitarian intervention.

Many criticisms have been levied against humanitarian intervention.[1] Inter-governmental bodies and commission reports composed by persons associated with governmental and international careers have rarely discussed the distorting selectivity of geopolitics behind humanitarian intervention nor potential hidden motivations of intervening parties. To find less veiled criticism one must usually turn to civil society perspectives, especially those shaped by independent scholars who benefit from academic freedom.[36]

Some argue that humanitarian intervention is a modern manifestation of the Western colonialism of the 19th century. Anne Orford's work is a major contribution along these lines, demonstrating the extent to which the perils of the present for societies experiencing humanitarian catastrophes are directly attributable to the legacy of colonial rule. In the name of reconstruction, a capitalist set of constraints is imposed on a broken society that impairs its right of self-determination and prevents its leadership from adopting an approach to development that benefits the people of the country rather than makes foreign investors happy. The essence of her position is that “legal narratives ufa” justifying humanitarian intervention have had the primary effect of sustaining “an unjust and exploitative status quo”.[37]

Others argue that dominant countries, especially the United States and its coalition partners, are using humanitarian pretexts to pursue otherwise unacceptable geopolitical goals and to evade the non-intervention norm and legal prohibitions on the use of international force. Noam Chomsky and Tariq Ali are at the forefront of this camp, viewing professions of humanitarian motivation with deep skepticism. They argue that the United States has continued to act with its own interests in mind, with the only change being that humanitarianism has become a legitimizing ideology for projection of U.S. hegemony in a post–Cold War world. Ali in particular argues that NATO intervention in Kosovo was conducted largely to boost NATO's credibility.[38][39]

A third type of criticism centers on the event-based and inconsistent nature of most policies on humanitarian intervention. These critics argue that there is a tendency for the concept to be invoked in the heat of action, giving the appearance of propriety for Western television viewers, but that it neglects the conflicts that are forgotten by the media or occur based on chronic distresses rather than sudden crises. Henry Kissinger, for example, finds that Bill Clinton's practice of humanitarian intervention was wildly inconsistent. The US launched two military campaigns against Serbia while ignoring more widespread slaughter in Rwanda, justifying the Russian assault on Chechnya, and welcoming to the United States the second-ranking military official of a widely recognized severe human rights violator - the communist government of North Korea.[40]

Humanitarian intervention has historically consisted of actions directed by Northern states within the internal affairs of Southern states, and has also led to criticism from many non-Western states. The norm of non-intervention and the primacy of sovereign equality are still cherished by the vast majority of states, which see in the new Western dispensation not a growing awareness of human rights, but a regression to the selective adherence to sovereignty of the pre–UN Charter world.[41] During the G-77 summit, which brought together 133 nation-states, the "so-called right of humanitarian intervention" claimed by powerful states was condemned.[42]

^Michael Byers and Simon Chesterman. "Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law." Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge: Cambridge University Press, 2003.